HEAD? SINGLE? MOX NIX

Judge Lauber doesn’t care which it is. Section 6013(b)(2)(B) only bars those who file MFS from switching to MFJ, or vice versa, after they get hit with a SNOD. Those who file “single” whilst married, or “HOH” while likewise conjoined, get a bye.

Patricia Marie filed HOH, as minor child lived with her. Husband George filed single. Both claimed EITCs, but only Patricia Marie got hit with a SNOD. So, although George was tossed after both he and Patricia Marie petitioned, they filed an amended MFJ before the case was submitted, and that kept them in the hunt.

Patricia Marie moved for entry of decision. That got bounced as premature, but IRS’ motion for summary J also gets bounced, based on Fan and Ami.

Judge Lauber does a prolonged jaunt through the history of MFS and MFJ, and the meaning of the word “election.”

Here’s the Cliff Notes version. “We confronted a similar question in Camara v. Commissioner, 149 T.C. __ (Sept. 28, 2017), where we held that the bar in section 6013(b)(2)(B) against filing jointly did not apply because the married taxpayer initially had not filed ‘a separate return.’ This case differs from Camara in that petitioner initially made an erroneous election of ‘head of household’ filing status whereas the taxpayer in Camara initially made an erroneous election of ‘single’ filing status. We conclude that this distinction makes no legal difference: Because the filing status initially selected by each married taxpayer was legally impermissible, the logic of our Opinion in Camara has equal force here. With the bar in section 6013(b)(2)(B) being thus inapplicable, petitioner was entitled under section 6013(a) to file jointly with her spouse. We will therefore deny respondent’s motion for summary judgment.” 2017 T. C. Memo. 205, at pp. 2-3.

Note that “mistake,” which was the underpinning of Ibrahim v. Commissioner (see my blogpost “Whom the Preparer Puts Asunder – Part Deux,” 1/5/17), and apparently of Camara, seems to have vanished, as Judge Lauber never states that either George or Patricia Marie mistakenly filed in their separate capacities.

There’s nothing to show either Patricia Marie or George was playing games, but these cases offer an opportunity for wiseguys to dodge Section 6013.

If tax reform is on the menu, maybe this is another one for Congress to fix.

An author, teacher, advocate and trusted advisor, Lew Taishoff is a New York City-based attorney with 52 years of experience in corporate and individual tax and real estate matters. He is an Enrolled Agent, examined and admitted to practice before the Internal Revenue Service, and admitted to practice before the ... Continue reading →